Rural and Remote
Education Inquiry Briefing Paper
2. Defining key terms
The Committee on
Economic, Social and Cultural Rights has identified 3 inter-connected
elements of 'accessibility' in the context of education.
- education must be accessible to all, especially the most vulnerable
groups, in law and fact, without discrimination on any of the prohibited
- Physical accessibility
- education has to be within safe physical reach, either by attendance
at some reasonably convenient geographic location (e.g. a neighbourhood
school) or via modern technology (e.g. access to a "distance learning"
- Economic accessibility
- education has to be affordable to all. This dimension of accessibility
is subject to the differential wording of article 13 (2) [of the International
Covenant on Economic, Social and Cultural Rights] in relation to primary,
secondary and higher education: whereas primary education shall be available
"free to all", States parties are required to progressively introduce
free secondary and higher education (General
Comment No. 13, 1999, paragraph 6).
Another element of
'accessibility' is what the Committee has termed 'acceptability': 'the
form and substance of education, including curricula and teaching methods,
have to be acceptable (e.g. relevant, culturally appropriate and of good
quality) to students and, in appropriate cases, parents; this is subject
to the educational objectives required by article 13 (1) and such minimum
educational standards as may be approved by the State (see art. 13 (3)
is 'accessible' must be measured by objective criteria. Children should
not be required to forego other entitlements, such as rest and leisure
or cultural commitments, in order to access an education.
- Geographic distribution
- Sufficient quantity
- Open and non-discriminatory
right of entry
- Provision of proper
facilities and staff.
institutions and programmes have to be available in sufficient quantity
within the jurisdiction of the State party. What they require to function
depends upon numerous factors, including the developmental context within
which they operate; for example, all institutions and programmes are likely
to require buildings or other protection from the elements, sanitation
facilities for both sexes, safe drinking water, trained teachers receiving
domestically competitive salaries, teaching materials, and so on; while
some will also require facilities such as a library, computer facilities
and information technology.'2
must be 'generally available' which means 'firstly, that secondary education
is not dependent on a student's apparent capacity or ability and, secondly,
that secondary education will be distributed throughout the State in such
a way that it is available on the same basis to all'.3
A child is generally
a person under 18 years of age, unless otherwise specified by law in the
applicable geographic region. This definition is found in article 1 of
the Convention on the Rights of the Child.
purposes of the present Convention, a child means every hu-man being below
the age of eighteen years unless under the law applicable to the child,
majority is attained earlier.
Many of the international
treaties protect cultural rights or rights based on cultural identity
or characteristics. However, it is not easy to define the characteristics
of cultural identity. Various groups may define culture in different ways.
The Human Rights Committee has stated
to the exercise of [cultural rights], the Committee observes that culture
manifests itself in many forms, including a particular way of life associated
with the use of land resources, especially in the case of indigenous peoples.4
Article 12 of the
Draft Declaration on the Rights of Indigenous Peoples gives some
guidance on what cultural characteristics are.
peoples have the right to practise and revitalize their cultural traditions
and customs. This includes the right to maintain, protect and develop
the past, present and future manifestations of their cultures, such as
archaeological and historical sites, artifacts, designs, ceremonies, technologies
and visual and performing arts and literature .
The term 'disability'
encompasses many different functional limitations. These include 'physical,
intellectual or sensory impairment, medical conditions or mental illness.'5
It encompasses both permanent and transitory conditions.
Section 4 of the
Disability Discrimination Act 1992 (Cth) provides a specific list
of circumstances that qualify as disabilities.
relation to a person, means:
- total or partial
loss of the person's bodily or mental functions; or
- total or partial
loss of a part of the body; or
- the presence in
the body of organisms causing disease or illness; or
- the presence in
the body of organisms capable of causing disease or illness; or
- the malfunction,
malformation or disfigurement of a part of the person's body; or
- disorder or malfunction
that results in the person learning differently from a person without
the disorder or malfunction; or
- a disorder, illness
or disease that affects a person's thought processes, perception of
reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
- presently exists;
- previously existed
but no longer exists; or
- may exist in the
- is imputed to
most generally defined as 'any distinction, exclusion, restriction or
preference based on an irrelevant ground (eg sex, race, colour or language)
which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise of a right on an equal footing'.6 Freedom
from discrimination 'does not mean identical treatment in every instance'
and certain legal exceptions do exist.7 The pursuit of legitimate
interests can justify different treatment. For example, different treatment
is not a violation of the International Covenant on Civil and Political
Rights 'if the criteria for such differentiation are reasonable and
objective and if the aim is to achieve a purpose which is legitimate under
is defined by article 1(1) of the International Convention on the Elimination
of All Forms of Racial Discrimination as 'any distinction, exclusion,
restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural
or any other field of public life'.
is defined in article 1 of the Convention on the Elimination of All
Forms of Discrimination against Women
purposes of the present Convention, the term 'discrimination against women'
shall mean any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
The United Nations
Committee on Economic, Social and Cultural Rights defines 'disability-based
discrimination' as 'including any distinction, exclusion, restriction
or preference, or denial of reasonable accommodation based on disability
which has the effect of nullifying or impairing the recognition, enjoyment
or exercise of economic, social or cultural rights'.9
In Australian law
the most recent definition of discrimination is in section 5 of the Disability
Discrimination Act 1992 (Cth).
purposes of this Act, a person ('discriminator') discriminates against
another person ('aggrieved person') on the ground of a disability of the
aggrieved person if, because of the aggrieved person's disability, the
discriminator treats or proposes to treat the aggrieved person less favourably
that, in circumstances that are the same or are not materially different,
the discriminator treats or would treat a person without the disability.
Section 6 of the
Act defines indirect disability discrimination.
For the purposes
of this Act, a person ('discriminator') discriminates against another
person ('aggrieved person') on the ground of a disability of the aggrieved
person if the discriminator requires the aggrieved person to comply
with a requirement or condition:
- with which a
substantially higher proportion of persons without the disability
comply or are able to comply; and
- which is not
reasonable having regard to the circumstances of the case; and
- with which the
aggrieved person does not or is not able to comply.
'Education' is not
confined to schooling. It is 'the imparting or acquisition of knowledge,
skills, etc; systematic instruction or training'.10 Such 'imparting'
or 'training' occurs throughout life and in all areas of life - from the
family home to the school to the workplace. UNESCO has defined 'education'
to cover 'the entire process of social life by means of which individuals
and social groups learn to develop consciously within, and for the benefit
of, the national and international communities, the whole of their personal
capacities, attitudes, aptitudes and knowledge'.11
However, in other
international treaties the reference to 'education' is to the formal education
system. In article 28(1) of the Convention on the Rights of the Child,
for example, 'education' means formal education or schooling. Article
1(2) of the Convention Against Discrimination in Education refers
to 'levels' of education, thus indicating a formal system.
is to be compulsory and free to all. This principle dates from 1948 when
the Universal Declaration of Human Rights was adopted. Article
has the right to education. Education shall be free, at least in the elementary
and fundamental stages. Elementary education shall be compulsory. Technical
and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
that 'The term "free" must be understood to mean that the delivery of
elementary education itself would be free of charge but it is not as certain
that other expenses of the student such as transportation costs, books,
and school uniforms would be covered'.12
More recently the
Committee on Economic, Social and Cultural Rights has commented that the
right to a free primary education 'is expressly formulated so as to ensure
the availability of primary education without charge to the child, parents
or guardians' (General
Comment No. 11, 1999, paragraph 7).
by the Government, the local authorities or the school, and other direct
costs, constitute disincentives to the enjoyment of the right and may
jeopardize its realization. They are also often highly regressive in effect.
Their elimination is a matter which must be addressed by the required
plan of action. Indirect costs, such as compulsory levies on parents (sometimes
portrayed as being voluntary, when in fact they are not), or the obligation
to wear a relatively expensive school uniform, can also fall into the
same category. Other indirect costs may be permissible, subject to the
Committee's examination on a case-by-case basis.13
There is no universally
accepted definition of 'Indigenous' in international law.14
In his 1986 report, the Special Rapporteur on the Prevention of Discrimination
and Protection of Minorities, Mr Martinez Cobo, proposed the following
criteria which have gained wide acceptance.
communities, peoples and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies that developed
on their territories, consider themselves distinct from other sectors
of the society now prevailing in those territories or parts of them. They
form at present non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations their ancestral territories,
and their ethnic identity, as the basis of their continued existence as
peoples, in accordance with their own cultural patterns, social institutions
and legal systems.15
concerning Indigenous and Tribal Peoples in Independent Countries
(ILO 169) explains the scope of its protected group in article 1, thus
providing guidance on which groups qualify as Indigenous.
- This Convention
- tribal peoples
in independent countries whose social, cultural and economic conditions
distinguish them from other sections of the national community, and
whose status is regulated wholly or partially by their own customs
or traditions or by special laws or regulations;
- peoples in independent
countries who are regarded as indigenous on account of their descent
from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonisation
or the establishment of present state boundaries and who, irrespective
of their legal status, retain some or all of their own social, economic,
cultural and political institutions.
It should be noted
that the Convention explicitly requires that the group in question
identify itself as Indigenous or tribal.
as indigenous or tribal shall be regarded as a fundamental criterion
for determining the groups to which the provisions of this Convention
The right to preserve
languages and linguistic differences gives rise to the question of defining
language. What qualifies as a language? Some languages may not have a
written form or that written form might use pictures or some type of code
other than traditional letters or characters. International law protects
these languages equally with more widely used ones. There is no requirement
that a language be written or capable of being reduced to writing.
Another issue is
the preservation of regional dialects. Does a regional or cultural dialect
or variation of a known language qualify as a separate language entitled
to protection under international law?
Finally, there is
the question of languages that are neither written nor spoken, such as
languages for the deaf, including Auslan. Many in the Australian deaf
community define their group as a linguistic minority. Is Auslan protected
under the language provisions of the international treaties?
For the purposes
of International Covenant on Civil and Political Rights article
27 and Convention on the Rights of the Child article 30, minority
groups are those defined by a distinct ethnicity, religion or language.
There is no universally accepted definition of 'minorities' in international
law. Whether or not a group of people can be recognised as a minority
will depend on objective criteria.
The UN Special Rapporteur
Professor Francesco Capotorti suggested the following definition.
. a group
numerically inferior to the rest of the population of a State, in a non-dominant
position, whose members - being nationals of the state - possess ethnic,
religious or linguistic characteristics differing from those of the rest
of the population and show, if only implicitly, a sense of solidarity,
directed towards preserving their culture, traditions, religion or language.16
The drafting documentation
for the International Covenant on Civil and Political Rights indicates
the drafters' intention that the term 'minorities' should be interpreted
to mean 'separate or distinct groups, well-defined and long-established
on the territory of a State'.
There is no universally
accepted definition of 'religion'. One philosopher has defined 'religion'
as a 'unified system of beliefs and practices relative to sacred things,
that is to say, things set apart and forbidden-beliefs and practices which
unite into one single moral community called a Church, all those who adhere
abound, but there is still much debate about what qualifies as a religion.
It is difficult to distinguish between religious beliefs and beliefs that
are not based on religion at all, but rather on culture or morals.
has established, however, that international protection of religion is
not limited to protection of traditional or mainstream beliefs. Article
18 of the International Covenant on Civil and Political Rights
'protects theistic, non-theistic and atheistic beliefs, as well as the
right not to profess any religion or belief'.18
'belief' and 'religion' are to be broadly construed. Article 18 is not
limited in its application to traditional religions or to religions and
beliefs with institutional characteristics or practices analogous to those
of traditional religions. The Committee therefore views with concern any
tendency to discriminate against any religion or belief for any reason,
including the fact that they are newly established, or represent religious
minorities that may be the subject of hostility on the part of a predominant
The European Court
of Justice definition of vocational education is
of education which prepares for a qualification for a particular profession,
trade or employment or which provides the necessary training and skills
for such a profession, trade or employment is vocational training, whatever
the age and the level of training of the pupils or students and even if
the training programme includes an element of general education.20
Should this definition
be adopted in Australia?
Comment No. 13, 1999, paragraph 6.
2General Comment No. 13, 1999, paragraph 6.
3General Comment No. 13, 1999, paragraph 13.
4 General Comment 23, paragraph 7, referring to article 27
of the International Covenant on Civil and Political Rights.
5Standard Rules on the Equalization of Opportunities for
Persons with Disabilities, UNGA 48/96, Introduction.
6 Human Rights Committee, General Comment 18, paragraph 7.
7Id, paragraph 8.
8Id, paragraph 13.
9 UN Committee on Economic, Social and Cultural Rights, General
Comment 5, paragraph 15, defining 'disability-based discrimination' for
the purposes of ICESCR.
10 Macquarie Dictionary.
11Recommendation Concerning Education for International
Understanding, Co-operation and Peace and Education Relating to Human
Rights and Fundamental Freedoms, UNESCO, 1974, article 1(a).
12 Douglas Hodgson, The Human Rights to Education, Ashgate
Publishing Ltd, 1998, page 41.
13General Comment No. 11, 1999, paragraph 7.
14 Russel L Barsh, 'Indigenous Peoples and the United Nations
Commission on Human Rights: A Case of Immovable Object and Irresistible
Force' (1996) 18 Human Rights Quarterly 782; J Corntassel and T
Primeau, 'Indigenous "Sovereignty" and International Law: Revised Strategies
for Pursuing "Self Determination"' (1995) 17 Human Rights Quarterly
343; E-I Daes, 'Indigenous people and their relationship to land: preliminary
working paper', UN Doc. E/CN.4/Sub.2/1997/17 and Corr.1.
15 UN Doc. E/CN.4/Sub.2/1986/7 and Add.4, paragraphs 379-382.
See also Sarah Pritchard (ed), Indigenous Peoples, the United Nations
and Human Rights, Zed Books, The Federation Press, 1998.
16Study on the Rights of Persons Belonging to Ethnic, Religious
and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, Add. 1.
17 Emile Durkheim, The Elementary Forms of Religious Life,
1915, trans. J W Swain, Free Press, New York, 1975, page 62.
18 Human Rights Committee, General Comment 22, paragraph 2.
20Gravier v City of Liege  ECR 593.
updated 2 December 2001.